N. Charleston files lawsuit challenging condemnation

Ashley Fletcher Frampton
Published Feb. 15, 2011

 

Following through on its promises to engage the state in a legal battle, the city of North Charleston has filed a lawsuit challenging the S.C. Department of Commerce’s right to take several parcels on the former Navy base to build a rail yard.

 

The Commerce Department on Dec. 22 announced plans for building a rail yard near the Port of Charleston’s new cargo terminal on the former base. At the rail yard, shipping containers would be assembled into trains.

 

The same week in late December, state officials served several property owners, including the city, with notices that it would use eminent domain to take parcels for the facility.

 

The city’s lawsuit, filed Jan. 21, seeks to overturn the condemnation action. In nine separate claims, the city argues that the Commerce Department and its S.C. Public Railways Division:

• Did not complete the project plans and financial studies required for condemnation.
• Did not follow certain procedures outlined under the state’s eminent domain laws.
• Cannot legally take the city’s land for a public use because it is already devoted to a public use.
• Lack the statutory authority to build a port-related rail yard. That authority belongs to the S.C. Department of Transportation and the S.C. State Ports Authority, the city claims.
• Are violating city contracts and debt obligations.
• The Commerce Department has not yet submitted a response to the lawsuit.

“We believe the claims are without merit and will be filing responses soon,” said Commerce spokeswoman Kara Borie.

 

North Charleston filed the lawsuit for each of the three parcels the Commerce Department seeks to take from the city itself, as well as a tract that the city deeded to Clemson University several years ago for its Restoration Institute.

 

City attorney Brady Hair said the recent lawsuit won’t be the last one that North Charleston files, though he declined to detail future filings.

 

“Challenging the condemnation is just the first shot across the bow,” Hair said.

 

The “heart and soul of the city’s position,” Hair said, is its contention that the state committed in 2002 not to run trains serving the new port terminal through the northern end of the former Navy base, and that the state is now breaking that promise.

 

The city sought that commitment from the S.C. State Ports Authority in a formal memorandum of understanding in an effort to protect redevelopment efforts on the northern end of the base.

 

“That deal was a written agreement approved by the Budget and Control Board, signed by the city and signed by the State Ports Authority,” Hair said. “And now the state, through the Department of Commerce, has tried to come in and break that deal, and we don’t believe they can do that.”

 

But Commerce Department officials and some state lawmakers have said that they are not breaking the deal. Instead, they say, the agreement was between the SPA and the city, and it does not bind them.

 

Those who support the state rail plan say it’s the best strategy for providing the two major rail carriers, CSX Transportation and Norfolk Southern Corp., with equal access to the new port terminal. That equal footing makes the Port of Charleston more competitive with other ports, they say.

 

CSX has proposed its own plan for a rail yard that would be accessed only from the southern end of the base. Company executives recently said they would share that yard with competitor Norfolk Southern, and share its costs, to achieve equal dual access.